Legal concerns continue over ‘Innocence of Muslims’

The trailer for the movie “Innocence of Muslims” continues to generate controversy.

Many Moslems claim the content – which was posted on YouTube – is blasphemy.

In 2012, they protested at U.S. diplomatic missions. The trailer was initially blamed by the Obama administration as the reason why Islamist militants attacked the U.S. diplomatic compound in Benghazi, Libya, killing four Americans. Yet, many dispute the movie had any role in the deadly attack. Meanwhile, protests against the movie were connected to hundreds of injuries and over 50 deaths.

In the United States, the 9th Circuit of Court of Appeals ruled in February that Google, which owns YouTube, should remove “Innocence of Muslims,” if versions featured Cindy Lee Garcia.

In response, Google has tried to fight the order.

What makes the legal battle particularly interesting in terms of copyright law is the role of Garcia in the case.

She wants to see the movie taken down from YouTube. Also, she and other cast members were told they were making an adventure movie, and the final movie dubbed over her lines.

“Her version of the 2011 script never mentioned the Prophet Muhammad, and the final video over-dubbed her lines with anti-Islamic sentiments spoken by someone else,” The New York Daily News reported after interviewing her.

“This isn’t about the First Amendment. I’m a patriot, and I support the right of freedom of speech. If I had said those things, it would be different. It wasn’t me,” she told the newspaper.

In a two-to-one decision, the Court of Appeals said Garcia can copyright her performance, and said the maker of the film lied to her.

"The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted,” Ninth Circuit Chief Judge Alex Kozinski said in the now controversial opinion.

On the other hand, Judge N.R. Smith dissented, and called the ruling “unprecedented” and said it created “new law.” “We have never held that an actress’ performance could be copyrightable,” Smith wrote in his opinion.

Similarly, Robert Kasunic, associate register of Copyrights and director of Registration Policy and Practices at the U.S. Copyright Office, would not register Garcia’s claim for her performance in the movie.

“[I]f her contribution was neither a work made for hire nor the requisite authorship to warrant a claim in a joint work, Ms. Garcia has no separable claim to copyrightable authorship in her performance,” he said in a document.

Google cited the document in the case and its petition is pending.

Google has defended itself, and says it is more difficult than Garcia’s side thinks to comply with the takedown order. Google contends the order requires disabling access to the video not deleting it.

“Garcia’s fundamental complaint appears to be that ‘Innocence of Muslims’ is still on the Internet,” the Google attorneys contend. “But Google and YouTube do not operate the Internet.”

However, Garcia’s attorneys say that “[f]or Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for ‘Innocence of Muslims.’” Her side is seeking sanctions of $150,000 per violation.

Her attorneys also want Google to be in contempt “for not deleting the posted videos, claiming that ‘merely disable[ing]’ access to them is insufficient, and that the ‘snide message’ displayed was a sign that Google was ‘ridiculing’ the court’s authority and ‘thumbing its nose at the Court and making a mockery of our judicial system,’” according to a blog post from Deborah Goldman, a law school student at Washington College of Law, on Intellectual Property Brief.

Many organizations want to see a review of the appeals court decision by 11 judges, which is called an “en banc review.”

Netflix, for instance, has raised concerns about the appeals court decision. "Can a bit-part actor in ‘Gone With the Wind’ now seek an injunction... because he does not approve of the use of his performance in a piece of 'Yankee propaganda'?" Netflix said in a brief. "What about his heirs? And even if he signed some agreement in 1939 defining the scope of the license, what are the chances that the studio (to say nothing of Netflix) can lay its hands on it?"

“By creating a new species of copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve, the panel majority risks wreaking havoc with established copyright and business rules on which all third party distributors, including Netflix, depend," Netflix added in its brief.

In addition, The Washington Post and National Public Radio have also been concerned with the ruling, especially with the risk that public officials could claim "veto power" over news reports.

"If an actress reading a script authored by someone else is 'sufficiently creative to be protectable,' public officials could argue that they 'own' the copyright to their prepared remarks, or their extemporaneous responses to a videotaped interview," the news organizations said, in a statement quoted by The Hollywood Reporter.

Other organizations which worry about the ruling are: Facebook, eBay, Gawker, Twitter, Yahoo, IAC/InterActiveCorp, Tumblr and Kickstarter. Similar concerns were voice by the Electronic Frontier Foundation, American Civil Liberties Union, and the Center for Democracy and Technology (CDT).

Consider, too, how the CDT said the video’s removal was “on dubious copyright grounds” and warned it “will set a dangerous precedent for online free expression if it is allowed to stand.”

“The opinion failed to adequately consider the public interest and harm to free expression in ordering the takedown,” CDT said in a statement. “The video has been a unique flashpoint for debates about free expression and the Internet – debates the opinion barely mentions.”

CDT also predicts the copyright argument “that actors in a movie could have independent copyright interests in their performances” may end up wreaking “havoc when considered in light of the Digital Millennium Copyright Act’s (DMCA) notice-and-takedown system. The DMCA allows anyone with a good-faith belief that his copyright has been infringed to send takedown notices to content hosts…. If Garcia stands, open the floodgates. Any creative contributor to a project, aggrieved for whatever reason, could use the DMCA to attempt to veto its rightful distribution.”